Nasser v Smith [2008] NSWLC 7

Nasser v Smith [2008] NSWLC 7

The second motion was not barred by estoppel or abuse of process. Although the material could and should have been put before the Registrar, the change of lawyer, the uncontested explanation that the former solicitor failed to act on instructions, the inadequate presentation of the first motion, the absence of prejudice to the plaintiff beyond costs and interest, and the existence of more than an arguable defence made this an exceptional case where the interests of justice required the default judgment to be set aside.

Jurisdiction
Australia
Judgment Date
08 May 2008
Procedural Posture
Civil / Notice of Motion to Set Aside Default Judgment
Outcome
Default judgment set aside; defendant ordered to file a defence; directions made for evidence and hearing arrangements; defendant ordered to pay the plaintiff's costs of the motion.
Legal Topics
['set Aside Default Judgment' 'successive Applications' 'estoppel' 'abuse of Process' 'delay' 'arguable Defence']
['civil Procedure'] ['set Aside Default Judgment' 'successive Applications' 'estoppel' 'abuse of Process' 'delay' 'arguable Defence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil / Notice of Motion to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether the default judgment entered on 4 July 2007 should be set aside under Rule 36.16 Uniform Civil Procedure Rules 2005.' 'Whether a second application to set aside default judgment was barred by estoppel, res judicata, Anshun estoppel or abuse of process.' 'Whether the defendant had explained the delay and shown an arguable defence, and whether the plaintiff would suffer prejudice beyond costs and interest.']

Ratio Decidendi

The second motion was not barred by estoppel or abuse of process. Although the material could and should have been put before the Registrar, the change of lawyer, the uncontested explanation that the former solicitor failed to act on instructions, the inadequate presentation of the first motion, the absence of prejudice to the plaintiff beyond costs and interest, and the existence of more than an arguable defence made this an exceptional case where the interests of justice required the default judgment to be set aside.

Court Disposition

Default judgment set aside; defendant ordered to file a defence; directions made for evidence and hearing arrangements; defendant ordered to pay the plaintiff's costs of the motion.

Orders

  • ['The default judgment is set aside.' 'The defendant is to file a defence by 22 May 2008.' 'Both parties are to file and serve evidence by 19 June 2008.' 'A hearing date will be obtained from registry, and a review date some three weeks prior to that.' 'The defendant is to pay the applicants costs of this motion as...